State v. Gales , 240 N.C. 319 ( 1954 )

82 S.E.2d 80 (1954) 240 N.C. 319

STATE
v.
GALES.

No. 652.

Supreme Court of North Carolina.

May 19, 1954.

Harry McMullan, Atty. Gen. and Ralph Moody, Asst. Atty. Gen., for the State.

H. W. B. Whitley, Raeford, for the prisoner.

ERVIN, Justice.

The prisoner asserts by his assignments of error that the trial judge erred in denying his motion to quash the indictment, in admitting certain testimony of the State's witness Gurney R. Lane, in refusing to withdraw from the petit jury the question of first degree murder, in charging the petit jury, in disallowing his motion for a vacation of the verdict and a new trial, in overruling his motion in arrest of judgment, and in entering judgment.

The indictment was returned at the November Term, 1953, of the Superior Court of Hoke County by the grand jury of eighteen members, nine of whom were drawn at that term and nine of whom were drawn at the previous April Term.

After pleading "not guilty" to the charge, the prisoner moved to quash the indictment on the ground that the grand jury was drawn and organized in violation of this provision of G.S. § 9-25: "At the April term of superior court held for the county of Hoke a grand jury shall be drawn, * * * and it shall serve until the followingApril term, Hoke superior court". He undertook to raise the same point a second time subsequent to the verdict by his motion in arrest of judgment.

An objection to an indictment based on defects or irregularities in the drawing or organization of the grand jury must be taken by a motion to quash the indictment. G.S. § 9-26; Miller v. State, 237 N.C. 29, 74 S.E.2d 513. It cannot be urged in arrest of judgment. State v. Sears, 61 N.C. 146. The motion to quash must be seasonably made. These rules regulate the time for the motion: (1) An accused may make the motion to quash the indictment as a matter of right up to the time when he is arraigned and enters his plea; (2) the presiding judge has the discretionary power to permit the accused to make the motion to quash the indictment as a matter of grace after his plea is entered and until the petit jury is sworn and impaneled to try the case on its merits; and (3) the presiding judge has no power to entertain a motion to quash the indictment at all after the petit jury is sworn and impaneled to try the case on its merits. An accused waives any objection to the grand jury which indicts him on the ground of defects or irregularities in its drawing or organization unless he takes the objection by a motion to quash the indictment before entering a plea to the merits. Miller v. State, supra; State v. Banner, 149 N.C. 519, 63 S.E. 84; State v. Gardner, 104 N.C. 739, 10 S.E. 146.

The trial judge observed these principles in denying the motion to quash the indictment and the motion in arrest of judgment. The prisoner waived his objection to the grand jury by his plea to the merits. His subsequent motion to quash came too late.

We deem it not amiss to note in passing from this phase of the appeal that the grand jury was drawn and organized in conformity with Chapter 465 of the Public-Local Laws of 1935, which provides "for Rotating Grand Juries in Hoke County" and was in force on the effective date of the General Statutes. The provision invoked by the prisoner was originally enacted as a part of Chapter 104 of the Public Laws of 1923, which was repealed by Chapter 465 of the Public-Local Laws of 1935. The compilers of the General Statutes overlooked this repeal of Chapter 104 of the Public Laws of 1923, and inadvertently incorporated the provisions of the repealed statute in G.S. § 9-25. Their action in so doing did not impair the validity of Chapter 465 of the Public-Local Laws of 1935 in any way because the General Assembly has decreed in express terms that "The General Statutes * * * shall not have the effect of repealing * * * public-local or private statutes * * * if such statutes were in force on the effective date of the General Statutes." G.S. § 164-7.

The State sought to draw from its witness Gurney R. Lane a description of personal injuries suffered by the deceased in a beating which the prisoner admitted he administered to her about March 1, 1953. The solicitor propounded these questions to the witness and elicited these replies from him: "(Q.) When his wife came to your house, did you observe her? (A.) Yes. "(Q.) What was her condition? (A.) She had a bruised place on her shoulder and on her leg down here. She had a bruised place on this leg, too. She walked and caught a ride from where they live to my house. She wanted to borrow some money." The prisoner objected generally to each question, but did not move to strike either answer in whole or in part. The evidence indicating that the prisoner intentionally inflicted personal injuries upon the deceased on an occasion antedating the homicide was responsive to the questions put to the witness. Moreover, it was admissible as bearing on intent, malice, motive, premeditation, and deliberation on the part of the prisoner. State v. Ray, 212 N.C. 725, 194 S.E. 482; State v. Horne, 209 N.C. 725, 184 S.E. 470. The prisoner waived any objection to the unresponsive part of the second answer by failing to make a specific motion to strike out that particular part. 23 C.J.S., Criminal Law, § 1073. We note, moreover, that the prejudicial character of the unresponsive part is not manifest.

The trial judge rightly refused to withdraw from the petit jury the question of first degree murder. The State's evidence was sufficient to show that the prisoner committed a wilful, deliberate, and premeditated murder within the meaning of the statute dividing murder into two degrees. G.S. § 14-17; State v. Lamm, 232 N.C. 402, 61 S.E.2d 188; State v. Cockrell, 230 N.C. 110, 52 S.E.2d 7; State v. Cash, 219 N.C. 818, 15 S.E.2d 277; State v. Wall, 218 N.C. 566, 11 S.E.2d 880; State v. Hawkins, 214 N.C. 326, 199 S.E. 284.

The assignments of error relating to the charge have received consideration commensurate with the gravity of the case. They do not present any novel or unusual question requiring elaboration, or point out any error of commission or omission warranting a new trial.

The exception to the overruling of the motion for a vacation of the verdict and a new trial and the exception to the entering of the judgment are formal and require no discussion.

Prejudicial error has not been made to appear. Hence, the judgment of the trial court must be upheld.

No error.